Arizona’s Neo-Confederate Tea-Publicans are back again

I warned you about this the other day posting about the “Y’all Qaeda” Bundy boys and their “yeehawdist” terrorist attack on Malheur National Wildlife Refuge in Oregon, one of the first wildlife sanctuaries created by President Teddy Roosevelt:

Arizona’s Neo-Confederate Tea-Publican state legislators have been among the biggest supporters of this federal land grab under the banner of “states’ rights” and the interposition and nullification of federal laws. There will almost certainly be several of these bills introduced again in the next legislative session.

Arizona could ignore executive actions like the gun-control plan President Barack Obama announced Tuesday if the state Legislature passes a bill introduced by Republican lawmakers.

[Yeah, NO, it can’t.]

House Bill 2024 would prohibit Arizona and its local governments from using staff or financial resources to enforce or support any presidential executive order, federal agency policy or U.S. Supreme Court opinion that “is not in pursuance of the Constitution” and has not been passed by Congress and signed into law.

In other words, these Tea-Publicans reject the whole co-equal branches of government, separation of powers, and judicial review doctrines of the U.S. Constitution for the one branch of government that Tea-Publicans currently control, the legislative branch. And when their fortunes change, then what? Or do they intend to impose the authoritarian government that they long for?

The bill does not detail any process for determining whether such orders, policies and opinions abide by the Constitution or who would have the authority to determine that.

Maybe this fool?

Rep. Mark Finchem, R-Oro Valley, introduced the bill, and several of the Legislature’s most conservative House and Senate Republicans have signed on in support. A similar bill last year passed the House but failed to get a final Senate vote before the session ended.

Ah, but these rebels without a clue did manage to refer Proposition 122, a state constitutional amendment to the ballot in 2014, which was narrowly approved in the lowest voter turnout election since 1942. This “interposition and nullification” amendment purports to allow the state to refuse to fund what it considers unconstitutional federal actions. It is entirely unconstitutional, as was pointed out before the wingnut voters of Arizona voted for it.

Prop. 122 has yet to be used by Arizona, so there is not an actual case and controversy that can be litigated in court where this bit of lunacy will eventually be struck down as unconstitutional.

Finchem said it’s time for the states to start wielding their sovereign authority.

“If you torture the Constitution enough, you will get it to say anything. And that’s what we have today,” he said. “The reason for House Bill 2024 is to take the Constitution out of the torture chamber and have Arizona stand up and say we are sovereign and we have expectations that you will live by the letter of the law and the Constitution.”

HB 2024 also would extend the same language to decisions of the U.S. Supreme Court. Finchem said that, absent congressional action, there is no reason Arizona should have to do anything — or use state resources — to comply with court rulings.

Finchem told Capitol Media Services it’s wrong to even call what comes from the high court a “ruling.” And he derided the idea that the justices were creating “case law.”

“It’s not law at all,” he said.

“It’s case opinion and past practice, past application,” said Finchem, who got seven other Republicans to sign on as co-sponsors of the measure. And he said that it really is just the opinion of the majority of justices in a given case.

“The court can pass an opinion all day long,” he said. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”

Did you catch that? This rebel without a clue just excised all of Article III and the federal courts out of the U.S. Constitution, because in his fevered brain, he suffers under the delusion that we are still operating under the Articles of Confederation, or the Constitution of the Confederate States.

Finchem said the federal government — and a federal court — cannot force the state to do something that is contrary to the state’s own constitution.

So now this rebel without a clue is rejecting the “Supremacy Clause,” Article VI, Paragraph 2 of the U.S. Constitution, and the post-civil war 14th Amendment, specifically:

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Confederate states were only allowed to rejoin the Union after agreeing to be bound by the supremacy of the U.S. Constitution. This disability clause should apply to the current Neo-Confederates who continue to propose long-discredited theories of interposition and nullification of federal laws.

“The court can pass an opinion all day long,” Finchem told Howard Fischer of Capitol Media Services. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”

This is not even close to being true.

Finchem told me, “States are co-equal sovereigns, so we also have an opinion that matters in this.”

Yes, the Supreme Court is not really so supreme in the view of an increasingly prominent group of self-described “constitutionalists.” We all have an opinion, after all, and who’s to say the state’s view isn’t actually the correct one?

That’s the fundamental problem with the “constitutionalist” fever that has a hold on a good part of Arizona’s and America’s right wing. Their view devolves into an anarchical view that our country should operate based on cherry-picked constitutional principles interpreted by ad libbed authorities.

My education on these matters — so-called militias and constitutionalists — goes back more than a decade. In the late 1990s, while covering Tucson’s federal court, I repeatedly went through civil suits by people claiming that judgements made against them were invalid because they were made in courts where a gold-fringed American flag flew, making it an admiralty court.

That’s one of the outer rings of anti-federal-government conspiracy theories, but ultimately most of them are related in declaring the government’s actions unconstitutional and our own need to rein them in however we see fit.

Over the years one Southern Arizona character really helped me grasp “constitutionalist” arguments and their weaknesses. Richard Mack, the former sheriff of Graham County, has had periods of national prominence since the mid-1990s.

He won a 1997 Supreme Court ruling that sheriffs do not have to perform background checks for gun purchases, as dictated by federal law, and spun that into a partial career in public speaking.

His big argument is for “constitutional sheriffs” — the idea that sheriffs are the top constitutional authority in any given county.

In his view, sheriffs — because they’ve sworn the oath to uphold and defend the constitution, and because they are elected — should step in when constitutional rights are being violated. A constitutional sheriff would have stopped the arrest of Rosa Parks for refusing to sit at the back of the bus, Mack has often said.

How are they to judge? Well, if they swear an oath to protect and defend the Constitution, then it’s their job to figure it out. And we are apparently to accept their judgment.

* * *

This is something our Legislature, too, has excelled at over the years.
In the last decade the Legislature has proposed nullification of federal laws, forcing federal agents to register with county sheriffs, and converting all federal lands into state lands. None of this, of course, would pass a judicial challenge.

The Legislature referred to the 2014 state ballot an initiative similar to the bill Finchem has proposed this year, and we passed it by 51 percent to 49 percent. Proposition 122 amended the state Constitution to give Arizona voters and the Legislature the power to overturn any unconstitutional federal-government act through initiatives or bills.

Who determines what’s unconstitutional? Well, that’s an open question, much as in Finchem’s bill, which contains no language to explain who are the arbiters as to which executive order, federal policy or Supreme Court opinion violates the Constitution. Finchem told me he’s willing to hear suggested amendments, but that the state House might be the best judge because of its power of the purse.

Conveniently where he serves!

Finchem, by the way, is a retired police officer from Michigan and a member of the Oath Keepers, a group of current and former military members, police officers and first responders dedicated to upholding their view of the Constitution, especially protection of the right to firearms. Among its list of “orders we will not obey” is:

“We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.”

Who decides what is invasion or subjugation? Again, who knows — maybe the Oath Keepers board? These self-described constitutionalists all have their own ideas but ignore the obvious — we already have a judicial system that grapples with questions of constitutionality every day.

The courts are the home of the rule of law. Whether you’re in Oregon or Arizona, when those rulings go against you, it doesn’t give you the right to take up arms against the entire federal system or improvise your way out of it.

The Tea-Publican legislators who vote for these bills are in violation of their oaths of office. They are unfit to serve in public office. It’s time that Arizonans stop tolerating this wingnut insanity and kick them all out of office.

5 responses to “Arizona’s Neo-Confederate Tea-Publicans are back again”

Very well written and researched, Meanie; especially the law references. I would like to act on your conclusion by presenting a resolution to that effect at the next Pima Dems meeting. We should resolve that these neoconfederates are, indeed in violation of their oaths of office and of Federal law and declare them as unfit to serve. We should petition the Arizona AG to investigate this claim and remove them from office. I would also suggest that US Marshals consider their sedition and calls to declaim Federal authority.

There are state statutes for the removal from office, and they define specific circumstances for removal. A generic violation of oath of office will not do (they do it all the time). No one has sought Section 3 (14th Amendment) disqualification since the Reconstruction era. The argument is that it applied to those who engaged in rebellion against the U.S. in the Civil War. It probably never occurred to the drafters that 150 years later we would still have Neo-Confederate dead-enders still fighting the Civil War. Should they engage in sedition, insurrection or rebellion against the U.S., an argument can be made that Section 3 remains viable.

In 1872, the disabilities were removed by a blanket act, from all persons “except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military and naval service of the United States, heads of departments, and foreign ministers of the United States.” Twenty-six years later, Congress enacted an Act of June 6, 1898, ch. 389, 30 Stat. 432. Legislation by Congress providing for removal was necessary to give effect to the prohibition of § 3, and until removed in pursuance of such legislation persons in office before promulgation of the Fourteenth Amendment continued to exercise their functions lawfully. Griffin’s Case, 11 Fed. Cas. 7 (C.C.D.Va. 1869) (No. 5815). Nor were persons who had taken part in the Civil War and had been pardoned by the President before the adoption of this Amendment precluded by this section from again holding office under the United States. 18 Op. Att’y Gen. 149 (1885). On the construction of “engaged in rebellion,” see United States v. Powell, 27 Fed. Cas. 605 (C.C.D.N.C. 1871) (No. 16,079).

Knowing many of these individuals couldn’t recite a single passage beyond the second amendment, I can’t help to wonder: When they learn of the other Consitutional Amendments and they disagree with them do they declare that those amendments to the Constitution are Constitutionaly unconstitutional?

The want to protect the Constitution like it’s their daughter out on prom night until they get to the parts about slaves being citizens and people voting for their own Senators.

Or that pesky part about the US government having control over public lands.

Thank god for Florida, keeping Arizona from being number one on the ignorant/hateful scale.

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